Landmark Federal Court Ruling on the Safe Third Country Agreement

On November 29th, 2007, the Federal Court of Canada issued a landmark decision [1] holding that the Canada-US Safe Third Country Agreement [2] violates the Canadian Charter of Rights and Freedoms. [3]

The Agreement effectively closes the Canada-US land border to most asylum seekers. According to the terms of the Agreement, asylum seekers are required to have their refugee claims decided in their first country of arrival. Asylum seekers who, in contravention of this requirement, attempt to cross the Canada-US border are – with certain limited exceptions – simply turned back to their first country of arrival. [4]

The main effect of the Agreement has been to reduce the number of refugee claims made in Canada. Prior to the Agreement, which came into effect in 2004, far more asylum seekers arrived in Canada via the US than the reverse. For example, in 2001 around 13,000 refugee claimants came to Canada via the US. In the same year, fewer than 200 refugee claimants left Canada for the United States. [5].

The Canadian Council for Refugees (CCR), along with several other organizations working on behalf of refugees, challenged the constitutional validity of the Agreement in Federal Court.

The CCR’s main argument was that the US asylum system does not meet either Canadian or international refugee law standards. In particular, some asylum seekers who are turned away at the border would qualify as refugees under Canadian refugee law, but not under US asylum law. The Agreement thus leads Canada to send some individuals meeting the Canadian refugee definition to the US, where they are unable to obtain refugee protection and where they ultimately risk deportation to countries where they may be persecuted, tortured or even killed. The CCR argued that returning asylum seekers to the US under such circumstances violates their constitutional rights to life, liberty and security of the person [6], as well as their right to “non-refoulement” under international refugee law. [7]

In his highly anticipated ruling, Federal Court Justice Phelan J. accepts the CCR’s argument, holding that the US regularly breaches both the Refugee Convention and the Convention Against Torture [8]. Among his more pertinent findings in this respect are:

• The US legislative bar on asylum claims made after a person has been in the US for more than a year creates a risk of “refoulement” [9] and return to face torture [10];
• The extremely wide scope that US law gives to excluding from refugee protection those suspected of involvement in terrorist activities creates a risk of “refoulement” and return to face torture [11];
• The uncertain treatment under US asylum law of women facing domestic violence creates a risk of “refoulement” [12]; and,
• The general protection provided against return to face torture in US law is insufficient, as evidenced by the position taken by the US when it advised the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar that the extraordinary rendition of Maher Arar to Syria complied with the Convention Against Torture [13].

In these circumstances, Phelan J. found that the Agreement violates the constitutional rights to life, liberty and security of the person (as well as the equality rights) of asylum seekers turned away at the Canada-US border.

Yesterday’s decision will not immediately result in the Canadian border being opened to asylum seekers in the US. The parties are still presenting arguments regarding the appropriate judicial order. Moreover, regardless of the final order, the government will surely appeal the decision.

The decision, however, is groundbreaking. For the CCR and other refugee organizations that worked tirelessly on a pro-bono basis to initiate this challenge, the decision represents a remarkable victory. A Canadian Federal Court has now held that the US systematically violates the Refugee Convention, as well as the Convention Against Torture. Moreover, the strategy through which Canada has prevented thousands of refugees per year from coming to the country via the US faces an uncertain future.

Given the stakes involved, it will be interesting to see not only how this decision plays out on appeal, but also how Canadian and US officials responsible for refugee law and policy respond, if at all.